Weekly Case Digests – September 7, 2021 – September 10, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Czeslaw M. Parzych v. Merrick B. Garland

Case No.: 20-2317

Officials: MANION, WOOD, and BRENNAN, Circuit Judges.

Focus: Immigration – Removal Order

Czeslaw Parzych, a Polish citizen and lawful permanent resident of the United States, was twice convicted of burglary in Illinois, leading the Department of Homeland Security to begin removal proceedings. After several appeals, the Board of Immigration Appeals ultimately upheld an Immigration Judge’s determination that Parzych was removable. Parzych now petitions for review, arguing that the Board erred by applying the “modified categorical approach” to determine whether his Illinois convictions were removable offenses under federal law. Because the Illinois burglary statute is not divisible, we agree with him that the modified categorical approach does not apply. We therefore grant Parzych’s petition for review, vacate the removal order, and remand the case to the Board for further proceedings.

Petition granted, vacated and remanded

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7^th Circuit Court of Appeals

Case Name: American Bankers Insurance Company of Florida v. Robert Shockley, Jr.,

Case No.: 20-1938

Officials: MANION, KANNE, and ROVNER, Circuit Judges.

Focus: Insurance Claim – Duty to Defend

This insurance dispute stems from Robert Shockley, Jr., filing a civil complaint in Illinois state court. The complaint alleged Shockley was severely injured after being thrown from (and run over by) a golf cart driven by a St. Charles Farms (“SFC”) employee. Shockley sued SFC and its employee for negligence. In response, SFC’s insurer American Bankers Insurance Company of Florida filed suit in federal court seeking a declaratory judgment that it has no duty to defend or indemnify SFC or its employee in the underlying lawsuit. The district court granted American’s motion for summary judgment. Because the district court erred in interpreting the insurance policy, we reverse and remand.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Adrian Thomas v. James S. Black, et al.,

Case No.: 20-1718

Officials: HAMILTON, SCUDDER, and KIRSCH, Circuit Judges.

Focus: 8^th Amendment Violation – Summary Judgment

Adrian Thomas sued several prison officials at Pontiac Correctional Center in Illinois alleging they violated the Eighth Amendment by restricting him for two months to a cell with feces on the walls, a mattress covered in human waste, a bunk bed with a hundred dead flies, and inadequate plumbing that caused him to develop a rash. Had the officials done nothing in response to Thomas’s complaints, they would have violated the Constitution’s prohibition on cruel and unusual punishment. But, relying on undisputed evidence showing that the prison responded to Thomas’s concerns and medical needs, the district court entered summary judgment for the officials. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: StarNet Insurance Company v. Adam Ruprecht, et al.,

Case No.: 20-1192

Officials: EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.

Focus: Insurance Claim – Coverage

StarNet Insurance Company filed suit in diversity seeking a declaratory judgment specifying that the terms of a workers’ compensation and employers liability policy it issued to P.S. Demolition, Inc. obligate it to pay nothing more for a workplace injury than the amounts that Illinois workers’ compensation law requires P.S. Demolition to pay its injured employees. The district court entered judgment on the pleadings in favor of StarNet. StarNet Ins. Co. v. Ruprecht, 2019 WL 6877599 (N.D. Ill. Dec. 17, 2019). We affirm. Our reasoning tracks that of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Isabella Nartey v. Franciscan Health Hospital

Case No.: 19-3342

Officials: HAMILTON, SCUDDER, and KIRSCH, Circuit Judges.

Focus: Failure to State Claim

In August 2016 Millicent Nartey was admitted to a hospital where she suffered a stroke and eventually passed away. Her daughter, Isabella Nartey, sued the hospital, alleging that its treatment did not comply with federal and state law. The district court dismissed the complaint but allowed Nartey 30 days to file an amended one. Nartey missed the deadline, leading the district court to enter judgment against her. Nartey failed to file a formal notice of appeal within the initial time limit prescribed by Federal Rule of Appellate Procedure 4, causing us to question our jurisdiction to hear this appeal. But we can still reach the merits of Nartey’s arguments because she gave sufficient notice of her intent to appeal in other timely post‐judgment filings. In the end, though, we agree with the district court that Nartey failed to state a claim, and so we affirm the dismissal of her complaint.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Keith Smith v. City of Chicago, et al.,

Case No.: 19-2725

Officials: FLAUM, ROVNER, and BRENNAN, Circuit Judges.

Focus: Time-barred

“Better late than never” is not a phrase typically heard in a federal courthouse. Even meritorious claims brought outside their statute of limitations must be dismissed. Keith Smith sued the City of Chicago and two of its police officers under 42 U.S.C. § 1983 for violating the Fourth Amendment, claiming unlawful pretrial detention based on fabricated evidence. Rather than resolve the appeal on the merits, we must decide whether Smith timely filed his complaint, a question which depends on when his claim accrued. Smith argues that happened when he was acquitted at trial. If it did, then his complaint was timely. But our precedent establishes that a Fourth Amendment claim such as Smith’s accrues when he is released from detention, and the Supreme Court’s recent decision in McDonough v. Smith, 139 S. Ct. 2149 (2019), has not disturbed that conclusion. Smith was released on bond on March 29, 2014, so if his claim accrued then, under the applicable two-year limitations period his lawsuit, filed on July 18, 2018, was untimely.

Alternatively, Smith contends his claim was timely because his bond conditions constituted an ongoing Fourth Amendment seizure, so he was not released from custody until he was acquitted. Squarely reaching this issue for the first time in this circuit, we hold that requirements to appear in court for a hearing and to request permission before leaving the state—taken together or separately—do not amount to Fourth Amendment seizures. Smith’s accrual date remains the date he was released on bond, and because his claim was untimely, we affirm the district court’s dismissal of his complaint.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Prairie Rivers Network v. Dynegy Midwest Generation, LLC,

Case No.: 18-3644

Officials: FLAUM, ROVNER, and BRENNAN, Circuit Judges.

Focus: Standing to Sue – Jurisdiction

Prairie Rivers Network is an Illinois non-profit organization that advocates for clean water and healthy rivers. Under the Clean Water Act’s citizen-suit provision, PRN sued Dynegy Midwest Generation, LLC, alleging that Dynegy illegally discharged coal ash pollutants into groundwater, which in turn entered the Middle Fork of the Vermilion River. The district court held that the Clean Water Act did not cover these groundwater discharges, so it dismissed PRN’s suit for lack of jurisdiction. We then stayed PRN’s appeal pending the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020). In that case, the Court established a multi-factor test to determine whether groundwater discharges fall under the Clean Water Act’s ambit. Id. at 1476–77.

We need not assess County of Maui’s reach, however, because PRN lacks standing. PRN has more than 1000 members yet fails to show that at least one of those individual members has standing. Associational standing, which PRN asserts, requires more specificity. Without at least one individual member who can sue in their own right, PRN cannot sue on their behalf. Because PRN cannot cure that defect via declarations on appeal, we affirm the district court’s dismissal for lack of jurisdiction.

Affirmed

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7^th Circuit Court of Appeals

Case Name: U.S. Venture, Inc., v. United States of America

Case No.: 20-1861

Officials: SYKES, Chief Judge, and BRENNAN and SCUDDER, Circuit Judges.

Focus: Statutory Interpretation – Alternative Fuel Mixture Tax Credit

Statutory interpretation is familiar territory for federal courts, and this appeal requires us to resolve a dispute over the scope of a statutory credit—taken against excise fuel taxes—that Congress made available to producers of “alternative fuel mixtures.” U.S. Venture, a Wisconsin-based producer of motor fuels, argues that the tax credit applies to gasoline with a butane additive. The United States disagrees, contending that there is nothing alternative about gasoline containing a butane additive and that Congress made this plain through a combination of statutory provisions defining the scope of the alternative fuel mixture tax credit provided in 26 U.S.C. § 6426(e). The district court concluded that the government had the stronger position under the operative statutory and regulatory provisions. We agree.

Reading statutory text through a wholistic lens—giving effect to the language Congress enacted into law and interpreting that language in the context of the full statutory scheme—is the cornerstone of proper statutory construction and where U.S. Venture falls short. We affirm the district court’s entry of judgment for the government.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Victor Mejia-Padilla v. Merrick B. Garland

Case No.: 20-1720

Officials: EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.

Focus: Immigration – Removal Order

Petitioner Victor Mejia-Padilla (“Mejia”) seeks review of an order of the Board of Immigration Appeals sustaining the denial of his statutory motion to reopen his deportation proceeding, which he filed more than six years after that proceeding closed. Mejia sought reopening on the ground that the notice to appear that initiated his deportation proceeding was defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), with the result that he continued to accrue time in the United States toward the 10-year threshold for seeking cancellation of removal and is now eligible to seek such relief. Because Mejia forfeited any objection to the deficiency in the notice to appear by not timely raising it in the removal proceeding and has not shown cause for forfeiture nor prejudice resulting from the defect in the notice, we deny the petition for review.

Petition denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jacob K. Wessel

Case No.: 19-3002

Officials: MANION, ROVNER, and SCUDDER, Circuit Judges.

Focus: Court Error – Standard of Competency

Jacob Wessel had a history of mental issues. On August 11, 2016, he allegedly raised a gun toward a police officer. A grand jury indicted him for the crime of being a felon in possession of a firearm. This case traveled a long, zig-zag path. Defense counsel moved the judge multiple times to find Wessel not competent to stand trial. The judge ordered three 45-day evaluations of Wessel by mental-health experts. Defense counsel also sent multiple mental-health experts to evaluate Wessel. The judge held three competency hearings. She determined he was competent to stand trial, so he did. But trial was not smooth. Wessel exploded into a tirade of profanities and accusations in front of the venire, so the judge sent him to a remote room where he stayed for most of the trial. The jury convicted him. The judge sentenced him to 100 months in prison. He argues the judge erred in concluding he was competent. He asks us to vacate the conviction. But the judge committed no reversible error.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Scott Weaver v. Champion Petfoods USA Inc, et al.,

Case No.: 20-2235

Officials: MANION, ROVNER, and ST. EVE, Circuit Judges.

Focus: Summary Judgment – Sufficiency of Evidence

Defendants Champion Petfoods USA Inc. and Champion Petfoods LP (collectively, “Champion”) produce dog food that they market as biologically appropriate, containing fresh regional ingredients, and never outsourced. Plaintiff Scott Weaver, a Wisconsin resident who purchased Champion’s food, alleged this marketing was deceptive and filed a putative class action. The district court granted summary judgment to Champion because it determined that Weaver had failed to produce sufficient evidence from which a reasonable jury could determine that any of the representations were false or misleading. We agree, and so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Linda S. Bergal v. Ben M. Roth, et al.,

Case No.: 20-2887

Officials: KANNE, ROVNER, and HAMILTON, Circuit Judges.

Focus: De Novo Review – Malpractice Claim

Plaintiff Linda Bergal brought this malpractice case against her attorney Ben Roth, his law firm, and accountant Joseph Sanders. She alleges the defendants duped her into disclaiming a $1.5 million mutual fund account owned by her late husband, Dr. Milton Bergal. The district court dismissed Linda’s claims as barred under the doctrine of issue preclusion (collateral estoppel) based on a state-court judgment that she obtained her claim on the account through undue influence. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dragan Kaplarevic v. Andrew Saul

Case No.: 20-2432

Officials: EASTERBROOK, WOOD, and BRENNAN, Circuit Judges.

Focus: ALJ Review – Disability Benefits

Dragan Kaplarevic filed for disability insurance benefits in December 2012, alleging that he became disabled on August 1, 2012. His “date last insured” was December 31, 2014, meaning that if his disability arose any later than that, he would not be eligible for benefits. The state agency that reviewed his application on behalf of the Commissioner of Social Security denied his application initially and upon reconsideration, see 20 C.F.R. § 404.1503, and he ultimately was no more successful before an administrative law judge (ALJ), the Appeals Council, or the district court. Kaplarevic has now appealed to this court for relief, but he cannot overcome the deferential standard of review that applies. Substantial evidence supported the agency’s decision, and so we affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jeremy Schenck

Case No.: 20-2353

Officials: MANION, ROVNER, and ST. EVE, Circuit Judges.

Focus: Court Error – Suppression of Evidence

Jeremy Schenck produced child pornography. He moved to suppress the evidence, arguing the search warrant was not supported by probable cause because the underlying affidavit did not identify how the affiant knew a few particular pieces of information. The district judge agreed with the magistrate judge’s recommendation and denied suppression. Schenck pleaded guilty to one count of violating 18 U.S.C. § 2251(a), conditioned on reserving his right to appeal. The district judge sentenced him to 240 months in prison. Schenck appeals the denial of suppression. But we agree with the district judge that there is nothing to criticize in the magistrate judge’s report and recommendation. The affidavit, read as a whole with common sense, established a reasonable probability that the search would produce evidence of child pornography.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Marathon County v. T.A.T.,

Case No.: 2019AP1709

Officials: SEIDL, J.

Focus: Involuntary Commitment – Sufficiency of Evidence

Travis appeals from an order for involuntary commitment under WIS. STAT. ch. 51. He argues Marathon County failed to meet its burden to prove that he was dangerous by showing that he “[e]vidence[d] a substantial probability of physical harm to himself … as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.” See WIS. STAT. § 51.20(1)(a)2.a. We agree with the circuit court that the County met its burden to prove that Travis was dangerous. We therefore affirm.

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WI Court of Appeals – District III

Case Name: LTD Acquisitions LLC v. Joe E. Meier

Case No.: 2019AP2096

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Motion for Reconsideration Denied

Joe Meier, pro se, appeals from an order denying reconsideration of the denial of his motion to vacate a default judgment. Because we conclude service of the summons and complaint upon Meier was improper, we reverse and remand with directions to vacate the judgment and dismiss the case.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. David Wayne Ross

Case No.: 2020AP261-CR

Officials: Brash, P.J., Graham and White, JJ.

Focus: Ineffective Assistance of Counsel

David Wayne Ross appeals his judgment of conviction for two counts of second-degree sexual assault. He also appeals the order denying his motion for postconviction relief without a hearing. Ross argues that his trial counsel was ineffective for choosing an unreasonable trial strategy claiming there was evidence of text message manipulation and for failing to object to testimony tying Ross to drugs, drug use, and drug paraphernalia. Further, Ross argues that the real controversy has not been tried. We reject Ross’s arguments and, accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael James Brehm

Case No.: 2020AP266-CR

Officials: Brash, P.J., Donald and White, JJ.

Focus: Evidentiary Hearing

Michael James Brehm appeals a judgment entered after a guilty plea to one count of possession of a firearm by a felon and an order denying postconviction relief. Brehm contends that he was improperly sentenced to three years of initial confinement for being a felon in possession pursuant to WIS. STAT. § 941.29(4m)(a) (2017-18). Brehm also contends that he is entitled to an evidentiary hearing to determine whether trial counsel was ineffective for: (1) failing to request a presentence investigation report (PSI); (2) failing to offer evidence of Brehm’s alleged “non-possession” of the firearm; and (3) failing to advise Brehm “not to make statements to his detriment.” We reject each of Brehm’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Juan J. Castillo

Case No.: 2020AP983-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Motion for Mistrial Denied

Juan Castillo appeals a judgment convicting him of one count of first-degree sexual assault of a child (sexual contact with a person under the age of thirteen). See WIS. STAT. § 948.02(1)(e) (2019-20). Castillo argues the circuit court erred by excluding his expert witness’s testimony regarding factors that can affect the reliability of a child’s statements. Castillo also argues the court erred by denying his motions for a mistrial after two witnesses made statements during their testimony that violated the court’s pretrial evidentiary rulings.

We reject Castillo’s argument that the circuit court erroneously exercised its discretion by excluding his expert witness’s testimony. The court reasonably concluded that the proffered testimony was inadmissible because it was not sufficiently tied to the facts of the case and was likely to confuse the jury.

We agree with Castillo, however, that the circuit court erroneously exercised its discretion by denying his motions for a mistrial. In doing so, we acknowledge that when a defendant’s request for a mistrial is not based on any laxness or overreaching by the prosecution, we must give great deference to the circuit court’s ruling. See State v. Bunch, 191 Wis. 2d 501, 507, 529 N.W.2d 923 (Ct. App. 1995). We also acknowledge that the court instructed the jury to disregard the statements in question, and that we generally presume jurors follow the court’s instructions. See State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989). Nevertheless, we conclude that in this case, the combined prejudicial effect of the relevant statements was so great that the court’s cautionary instructions were insufficient to remedy the error. As Castillo aptly states, under the circumstances present here, the “evidentiary bell” simply “could not be unrung” after the jury heard the statements in question. The court therefore erred by refusing to grant Castillo a mistrial. Accordingly, we reverse Castillo’s judgment of conviction and remand for a new trial.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lawrence Griffin, Jr.,

Case No.: 2020AP1043-CR

Officials: Brash, P.J., Dugan and Donald, JJ.

Focus: Unlawful Seizure – Reasonable Suspicion – Suppression of Evidence

Lawrence Griffin, Jr. appeals his judgment of conviction for possession of a firearm by a felon. Griffin pled guilty to that charge after the trial court denied his motion to suppress. Griffin asserts that that the trial court erred in denying his suppression motion, arguing that at the time the arresting police officers seized him— resulting in the discovery of the gun—they did not have reasonable suspicion for the seizure, and it was therefore illegal. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Salar Zangana

Case No.: 2020AP1228-CR

Officials: DUGAN, J.

Focus: Court Error – Right to Present Defense

Salar Zangana appeals from a judgment of conviction for misdemeanor battery and disorderly conduct and from orders of the trial court denying his motion for postconviction relief and his motion for reconsideration. Zangana argues that he is entitled to a new trial because the trial court violated Zangana’s right to present a defense when it erroneously excluded a text message in which one of the victims allegedly apologizes for falsely accusing Zangana of domestic abuse. This court affirms.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Guillermo Mendoza

Case No.: 2020AP1246-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Other-acts Evidence

Guillermo Mendoza appeals a judgment convicting him of incest and first-degree sexual assault of a child. Mendoza first argues that the circuit court erred by denying his motion for mistrial. That motion was based on the alleged admission of other acts evidence that occurred when the prosecutor asked Mendoza about his estranged wife living in Mexico. We conclude the circuit court properly exercised its discretion in this regard.

Mendoza also argues that the prosecutor engaged in improper questioning by repeatedly asking Mendoza whether a “good dad” would abuse his children. While we agree with Mendoza that this line of questioning was improper, we conclude the error was harmless because Mendoza categorically denied engaging in the subject conduct when responding to each question. Finally, we reject Mendoza’s assertion that he is entitled to a new trial in the interest of justice. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeffrey Lemont Lee

Case No.: 2020AP1597-CR

Officials: Brash, P.J., Donald and White, JJ.

Focus: Abuse of Discretion – Jury Instructions

Jeffrey Lemont Lee appeals his judgment of conviction for aggravated battery, substantial battery, disorderly conduct with the use of a dangerous weapon, and felony bail jumping, all with domestic abuse assessments and as a habitual offender. Lee also appeals an order denying his postconviction motion without a hearing.

Lee argues that the trial court did not properly exercise its discretion when it denied Lee’s request for a jury instruction on perfect self-defense. Lee further argues that the court erred in denying the claims in his postconviction motion: that the charges should be dismissed on due process grounds because he had no memory of the incident that resulted in the charges against him, and thus he should not have been prosecuted; and that his trial counsel was ineffective for failing to ensure that a photo was preserved of a chest wound Lee sustained during the incident, depicting its severity at that time. We disagree, and therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Larry A. Brown

Case No.: 2021AP12-CR

Officials: BRASH, P.J.

Focus: Abuse of Discretion – Expunction

Larry A. Brown appeals his judgment of conviction with regard to his sentence, specifically relating to the trial court’s denial of his motion to expunge the conviction from his record. Brown argues that the court erroneously exercised its discretion in making this decision because it did not properly consider the statutory factors for expunction. Upon review, we affirm.

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WI Court of Appeals – District III

Case Name: B.W., v. S.H.,

Case No.: 2021AP43; 2021AP44

Officials: SEIDL, J.

Focus: Termination of Parental Rights – Due Process Violation

S.H. appeals from orders entered in two cases, now consolidated on appeal, terminating his parental rights to his two children on the grounds of the continuing denial of his periods of physical placement under WIS. STAT. § 48.415(4). S.H. argues that § 48.415(4) facially violates his constitutional right to equal protection under the law. It does so, he contends, because it allows for parental rights to be terminated through a family court order without proof that such order denying the parental placement contained a warning that the parent’s rights could be terminated if that order remained unchanged, whereas proof of such a warning is required for termination under § 48.415(4) for juvenile court actions. S.H. further argues that the right of parents to have a relationship with their child is a fundamental liberty interest protected by the Fourteenth Amendment, thereby triggering strict scrutiny review that § 48.415(4) cannot survive. S.H. also contends that § 48.415(4), as applied to him, violates his right to equal protection because the underlying family court order that B.W. relied upon to obtain summary judgment in this action did not contain a notice of termination as is required in juvenile court actions.

Finally, S.H. argues that WIS. STAT. § 48.415(4), as applied to him, violates his right to substantive due process because it allowed him to be deemed an unfit parent without consideration of his poverty. S.H. argues that his indigence hampered his access to the family courts because a fee the circuit court required him to pay before he could schedule a hearing prevented consideration of his repeated attempts to regain placement of his children. We reject S.H.’s equal protection challenges, but we reverse the summary judgment on his as-applied substantive due process challenge and remand with directions.

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WI Court of Appeals – District I

Case Name: The Lakes of Ville Du Parc Condominium Association, Inc., v. City of Mequon, et al.,

Case No.: 2020AP600

Officials: Reilly, P.J., Gundrum and Davis, JJ.

Focus: De Novo Review – Summary Judgment – Issue of Material Fact

This case involves open land, currently in a natural state, that was sold by the same seller twice. The seller is no longer in the picture, so the two buyers (or, more precisely, their successors and/or representatives) are left to wage this battle over the question of ownership. The Lakes of Ville Du Parc Condominium Association, Inc. (the Association) claims title on behalf of its members by virtue of a condominium declaration (Declaration) and survey map, prepared and recorded under WIS. STAT. §§ 703.07 and 703.09 (2019-20) and designating the land as an “outlot” and part of the condominium “common elements.” Thomas Weickardt purchased the land many years later without (he claims) notice of the Association’s interest.

As the prior purchaser, the Association would ordinarily prevail as a matter of course, so long as its interest was recorded first—which it was, in 1984 and 1985, shortly after the Declaration and an amendment were prepared. Here, however, things are a bit more complicated—after the Declaration was recorded (and long before the sale to Weickardt), the developer prepared and recorded a new survey map and caused the land to be recorded in the plat index under separate parcel identification numbers (PINs). The developer then purported to exercise a right it had under the Declaration to use a portion of the land to expand the adjoining country club’s golf course and, in that event, convey the land back to itself from the unit owners, through a power of attorney. Later on, the developer included the entire parcel as part of a sale of the country club. Weickardt purchased the country club (and the open land) after that, then sold just the open land to the City of Mequon. Weickardt claims that he was the rightful owner at the time of his sale to the City because a search of the plat index did not reveal the Association’s interest.

The circuit court ruled in favor of the Association, reasoning that in the absence of a so-called “removal instrument” as authorized by WIS. STAT. § 703.28, which would take the land outside the application of WIS. STAT. ch. 703, there were no grounds on which a subsequent purchaser could take condominium property over the Association’s interest. We agree with the circuit court’s ruling in favor of the Association, but for a different reason: despite being given a separate PIN, the Association’s interest was discoverable through a “reasonable search” and therefore was in the chain of title. See WIS. STAT. § 706.09(4). As a result, Weickardt was put on record notice of the Association’s ownership claim, and his interest is subordinate to the Association’s. Accordingly, we affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Michael Anthony Turner v. Cathy Jess

Case No.: 2019AP1738

Officials: Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.

Focus: Writ of Certiorari – Prison Disciplinary Proceedings 

Michael Anthony Turner, pro se, appeals the circuit court’s order dismissing his petition for a writ of certiorari. Turner also appeals the court’s order denying his motion for reconsideration. Turner’s appellate briefing raises a number of issues relating to prison disciplinary proceedings and internal inmate complaints that he filed. We conclude that our review is limited to the matters raised in Turner’s inmate complaint OSCI-2018- 12461, and we uphold the agency decision dismissing that complaint. Accordingly, we affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: Island Camping, Inc., v. Wisconsin Department of Transportation

Case No.: 2019AP2284

Officials: FITZPATRICK, P.J.

Focus: Sufficiency of Evidence

For over thirty years, Island Camping, Inc. has operated a commercial campground on an approximately twenty-acre narrow strip of land along the Mississippi River. A bridge spanning the river between Minnesota and Wisconsin has stood over a slice of the Island Camping property the entire time it has operated the campground. The Department of Transportation (“DOT”), through eminent domain procedures, permanently took a .64-acre portion of the Island Camping property, as well as a temporary limited easement of 1.61 acres, for the construction of a replacement bridge over the Mississippi River and demolition of the previous bridge. In this lawsuit, Island Camping contends that the DOT’s taking of its property left the remainder of its property as an “uneconomic remnant” within the meaning of WIS. STAT. § 32.05(3m) (2019- 20) and, as a result, the DOT is required by statute to purchase the remainder of the Island Camping property.

Following a trial to the Pierce County Circuit Court, the court concluded that the DOT’s partial taking, along with the effects of the TLE and the construction of the replacement bridge and demolition of the previous bridge, have caused the remaining Island Camping property to be an uneconomic remnant. The DOT appeals and argues that the circuit court based its decision on “improper considerations” not within the analytical framework of WIS. STAT § 32.05(3m). The first subject area of the circuit court’s purported error is the court’s reliance on evidence concerning the economic viability of the Island Camping business at the remaining property. We reject that argument from the DOT and conclude that the circuit court properly considered such evidence in light of the evidence presented by the parties at trial, the specific aspects of this particular property, and the holdings of the supreme court in Waller v. American Transmission Co., LLC, 2013 WI 77, 350 Wis. 2d 242, 833 N.W.2d 764. The second subject area the DOT complains of is that the circuit court based its decision, in part, on evidence regarding the temporary effects of the bridge construction and demolition. We agree with the DOT that the circuit court erred in relying on the temporary problems caused by construction and demolition in coming to its conclusion that the remaining Island Camping property is an uneconomic remnant. In addition, we reject Island Camping’s argument that the circuit court’s error was harmless and did not affect the substantial rights of the DOT. Accordingly, we remand this matter for a new trial.

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WI Court of Appeals – District IV

Case Name: Friends of the Black River Forest, et al., v. Wisconsin Department of Natural Resources, et al.,

Case No.: 2019AP2434

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Statutory Interpretation – Wisconsin Environmental Policy Act

Under the Wisconsin Environmental Policy Act (WEPA), a state agency contemplating a “major action[] significantly affecting the quality of the human environment” must prepare and publish an Environmental Impact Statement (EIS): a detailed report evaluating potential environmental effects. See WIS. STAT. § 1.11(2)(c) (2019-20); WIS. ADMIN. CODE § NR 150.30(4) (through May 2020). The EIS is meant to inform decision-makers and the public, so that actions are approved or denied only on full consideration of their environmental consequences. Wisconsin’s Env’t Decade, Inc. v. DNR (WED 1979), 94 Wis. 2d 263, 271, 288 N.W.2d 168 (1979). Separately, WIS. STAT. ch. 227, Wisconsin’s Administrative Procedure Act, provides a mechanism for judicial review of final agency decisions that adversely affect a person’s substantial interests. See WIS. STAT. § 227.52; Sierra Club v. DNR, 2007 WI App 181, ¶13, 304 Wis. 2d 614, 736 N.W.2d 918. The question before us is whether an EIS is itself a final agency decision subject to standalone review under § 227.52, or, alternatively, whether a court may review an EIS only on a petition for review of the agency decision regarding the proposed “major action” that the EIS analyzes.

Friends of the Black River Forest and Claudia Bricks (collectively, Friends) sought judicial review of an EIS analyzing the environmental impact of a proposed golf course. Although there was no longer any final permit in effect, Friends argued that it had an independent right to challenge the underlying EIS. The circuit court disagreed and dismissed the petition. We conclude that an EIS, by its plain terms, is not a final decision: it analyzes the effects of, and alternatives to, a proposal without dictating any course of action or establishing the rights of any interested party. Accordingly, a party must wait for some final agency decision it is aggrieved by, such as the issuance or denial of a permit, at which point it may raise its challenges to the EIS in a petition for judicial review of the agency decision that the EIS analyzes. Because no such decision exists here, we affirm the dismissal of Friends’ petition.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Charles L. Neevel

Case No.: 2021AP36-CR

Officials: FITZPATRICK, P.J.

Focus: Unreasonable Search – Blood Test – Suppression of Evidence

Charles Neevel was arrested on suspicion of operating a motor vehicle while intoxicated. The arresting officer read to Neevel the “Informing the Accused” form, as required by Wisconsin’s implied consent statute, WIS. STAT. § 343.305, and Neevel verbally consented to a blood draw. Based on the results of the blood draw, Neevel was charged with operating a vehicle while intoxicated in the Dodge County Circuit Court. Neevel pleaded not guilty and moved to suppress the results of the blood draw on the basis that the blood draw violated his Fourth Amendment rights. Specifically, Neevel argued that the blood draw was an unreasonable search because the arresting officer did not offer to Neevel a less intrusive form of chemical testing. The circuit court denied Neevel’s suppression motion. Neevel was convicted based on his no contest plea and appeals the court’s denial of his suppression motion. I affirm the circuit court’s judgment of conviction and denial of Neevel’s suppression motion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Charles L. Neevel

Case No.: 2021AP36-CR

Officials: Sheila T. Reiff Clerk of Court of Appeals

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that a correction was made to paragraph 7 in the above-captioned opinion which was released on July 1, 2021. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. George Steven Burch

Case No.: 2021 WI 68

Focus: Abuse of Discretion – Admission of Evidence

George Steven Burch appeals a judgment of conviction for first-degree intentional homicide on the grounds that two pre-trial evidentiary motions were incorrectly denied. First, relying on the Fourth Amendment, Burch moved to suppress the admission of incriminating cell phone data. This data was obtained via an unrelated criminal investigation and kept in a police database. A different law enforcement agency investigating the homicide came upon this data and used it to connect Burch to the homicide. Burch argues that the initial download of the data exceeded the scope of his consent, the data was unlawfully retained, and the subsequent accessing of the data violated his reasonable expectation of privacy. We conclude that even if some constitutional defect attended either the initial download or subsequent accessing of the cell phone data, there was no law enforcement misconduct that would warrant exclusion of that data. Therefore, we conclude the circuit court correctly denied Burch’s motion to suppress that data.

Regarding the second pre-trial evidentiary motion, Burch asks us to reverse the circuit court’s discretionary decision to admit evidence from a Fitbit device allegedly worn by the victim’s boyfriend at the time of the homicide. This evidence, Burch maintains, should have been accompanied by expert testimony and was insufficiently authenticated. We agree with the State that the circuit court’s decision to admit this evidence was not an erroneous exercise of discretion. Burch’s judgment of conviction is affirmed.

Affirmed

Concur: REBECCA GRASSL BRADLEY, J., filed a concurring opinion. DALLET, J., filed an opinion concurring in part and dissenting in part, in which KAROFSKY, J., joined and in which ANN WALSH BRADLEY, J., joined except for footnote.

Dissent: ANN WALSH BRADLEY, J., filed a dissenting opinion. DALLET, J., filed an opinion concurring in part and dissenting in part, in which KAROFSKY, J., joined and in which ANN WALSH BRADLEY, J., joined except for footnote.

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WI Supreme Court

Case Name: Abby D. Padlock v. Board of Bar Examiners

Case No.: 2021 WI 69

Focus: Bar Admission

We review, pursuant to Supreme Court Rule (SCR) 40.08(7), the final decision of the Board of Bar Examiners (Board) declining to certify that the petitioner, Abby D. Padlock, has satisfied the character and fitness requirements for admission to the Wisconsin bar set forth in SCR 40.06(1). The Board’s decision was based primarily on its conclusion that Ms. Padlock was deceptive in her law school application and in her bar application by underreporting, in a misleading manner, the details of an arrest that caused her to be charged with two felony drug charges, which were later dismissed pursuant to a deferred prosecution agreement.

The initial duty to examine an applicant’s qualifications for bar admission rests with the Board. In the final analysis, however, this court retains supervisory authority and has the ultimate responsibility for regulating admission to the Wisconsin bar. See In re Bar Admission of Rippl, 2002 WI 15, ¶3, 250 Wis. 2d 519, 639 N.W.2d 553, and In re Bar Admission of Vanderperren, 2003 WI 37, ¶2, 261 Wis. 2d 150, 661 N.W.2d 27. Here, although Ms. Padlock’s disclosures raised significant questions about her fitness to practice law, we conclude that Ms. Padlock may be admitted to the practice of law in this state. Accordingly, we reverse and remand the matter to the Board for further proceedings.

Reversed and remanded

Concur:

Dissent: ZIEGLER, C.J. filed a dissenting opinion, joined by ROGGENSACK and HAGEDORN, JJ.

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WI Supreme Court

Case Name: St. Augustine School, et al., v. Carolyn Sandford Taylor

Case No.: 2021 WI 70

Focus: Certified Question – Transportation Aid

This case is before the court on a certified question from the United States Court of Appeals: for the Seventh Circuit. See Wis. Stat. § 821.01 (2019-20). Explaining that the question boils down to one of methodology, it certified the following question: For purposes of determining whether two or more schools are “private schools affiliated with the same religious denomination” for purposes of Wis. Stat. [§] 121.51, must the state superintendent rely exclusively on neutral criteria such as ownership, control, and articles of incorporation, or may the superintendent also take into account the school’s self-identification in sources such as its website or filings with the state.

This question arises in the context of St. Augustine School’s (St. Augustine) application for transportation benefits pursuant to Wis. Stat. §§ 121.51 and 121.54. Pursuant to these statutes, private schools are entitled to receive public funding to transport children to their schools, but only one affiliated school per “religious denomination” can receive the funding in each “attendance area.”

St. Augustine’s application was denied by the Superintendent of Public Instruction on the ground that another school of the same religious denomination within the same attendance area was already receiving the benefit. Specifically, the Superintendent determined that St. Gabriel, a Catholic school affiliated with the Archdiocese of Milwaukee, was already established in the same attendance area as St. Augustine, and St. Augustine also represented itself as a Roman Catholic school.

The certified question asks us only what information the Superintendent may consider in making a determination regarding whether two schools are “affiliated with the same religious denomination.” It does not ask us to resolve whether St. Gabriel and St. Augustine are actually of the same religious denomination. The application of the facts to the law remains with the federal courts upon remand.

We conclude that, in determining whether schools are “affiliated with the same religious denomination” pursuant to Wis. Stat. § 121.51, the Superintendent is not limited to consideration of a school’s corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school’s self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school’s religious beliefs, practices, or teachings.

Accordingly, we answer the certified question and remand to the United States Court of Appeals for the Seventh Circuit for further proceedings.

Certified question answered and cause remanded

Concur: ROGGENSACK, J., filed a concurring opinion. HAGEDORN, J., filed a concurring opinion.

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., joined.

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Supreme Court Digests

United States Supreme Court

Case Name: Jody Lombardo, et al., v. City of St. Louis, Missouri, et al.,

Case No.: 20-391

Focus: Certiorari Review – Excessive Force

On the afternoon of December 8, 2015, St. Louis police officers arrested Nicholas Gilbert for trespassing in a condemned building and failing to appear in court for a traffic ticket. Officers brought him to the St. Louis Metropolitan Police Department’s central station and placed him in a holding cell. At some point, an officer saw Gilbert tie a piece of clothing around the bars of his cell and put it around his neck, in an apparent attempt to hang himself. Three officers responded and entered Gilbert’s cell. One grabbed Gilbert’s wrist to handcuff him, but Gilbert evaded the officer and began to struggle. The three officers brought Gilbert, who was 5’3” and 160 pounds, down to a kneeling position over a concrete bench in the cell and handcuffed his arms behind his back. Gilbert reared back, kicking the officers and hitting his head on the bench. After Gilbert kicked one of the officers in the groin, they called for more help and leg shackles. While Gilbert continued to struggle, two officers shackled his legs together. Emergency medical services personnel were phoned for assistance.

Several more officers responded. They relieved two of the original three officers, leaving six officers in the cell with Gilbert, who was now handcuffed and in leg irons. The officers moved Gilbert to a prone position, face down on the floor. Three officers held Gilbert’s limbs down at the shoulders, biceps, and legs. At least one other placed pressure on Gilbert’s back and torso. Gilbert tried to raise his chest, saying, “‘It hurts. Stop.’” Lombardo v. Saint Louis City, 361 F. Supp. 3d 882, 898 (ED Mo. 2019). After 15 minutes of struggling in this position, Gilbert’s breathing became abnormal and he stopped moving. The officers rolled Gilbert onto his side and then his back to check for a pulse. Finding none, they performed chest compressions and rescue breathing. An ambulance eventually transported Gilbert to the hospital, where he was pronounced dead.

Gilbert’s parents sued, alleging that the officers had used excessive force against him. The District Court granted summary judgment in favor of the officers, concluding that they were entitled to qualified immunity because they did not violate a constitutional right that was clearly established at the time of the incident. Id., at 895. The U. S. Court of Appeals for the Eighth Circuit affirmed on different grounds, holding that the officers did not apply unconstitutionally excessive force against Gilbert. 956 F. 3d 1009, 1014 (2020).

We express no view as to whether the officers used unconstitutionally excessive force or, if they did, whether Gilbert’s right to be free of such force in these circumstances was clearly established at the time of his death. We instead grant the petition for certiorari, vacate the judgment of the Eighth Circuit, and remand the case to give the court the opportunity to employ an inquiry that clearly attends to the facts and circumstances in answering those questions in the first instance.

Petition granted. Vacated and remanded.

Dissenting: JUSTICE ALITO, with whom JUSTICE THOMAS and JUSTICE GORSUCH join, dissenting.

Concurring:

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United States Supreme Court

Case Name: Peyman Pakdel, et ux. V. City and County of San Francisco, California, et al.,

Case No.: 20-1212

Focus: 5^th Amendment Violation – Exhaustion of Administrative Remedies

When a plaintiff alleges a regulatory taking in violation of the Fifth Amendment, a federal court should not consider the claim before the government has reached a “final” decision. Suitum v. Tahoe Regional Planning Agency, 520 U. S. 725, 737 (1997). After all, until the government makes up its mind, a court will be hard pressed to determine whether the plaintiff has suffered a constitutional violation. See id., at 734; Horne v. Department of Agriculture, 569 U. S. 513, 525 (2013). In the decision below, however, the Ninth Circuit required petitioners to show not only that the San Francisco Department of Public Works had firmly rejected their request for a property-law exemption (which they did show), but also that they had complied with the agency’s administrative procedures for seeking relief. Because the latter requirement is at odds with “the settled rule . . . that exhaustion of state remedies is not a prerequisite to an action under 42 U. S. C. §1983,” Knick v. Township of Scott, 588 U. S. ___, ___ (2019) (slip op., at 2) (brackets and internal quotation marks omitted), we vacate and remand.

Petition granted. Vacated and remanded

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Penneast Pipeline Company, LLC, v. New Jersey, et al.,

Case No.: 19-1039

Focus: Eminent Domain

Eminent domain is the power of the government to take property for public use without the consent of the owner. It can be exercised either by public officials or by private parties to whom the power has been delegated. And it can be exercised either through the initiation of legal proceedings or simply by taking possession up front, with compensation to follow. Since the founding, the United States has used its eminent domain authority to build a variety of infrastructure projects. It has done so on its own and through private delegatees, and it has relied on legal proceedings and upfront takings. It has also used its power against both private property and property owned by the States.

This case involves one of the ways the federal eminent domain power can be exercised: through legal proceedings initiated by private delegatees against state-owned property. Specifically, we are asked to decide whether the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of way in which a State has an interest. We hold that it can. Although nonconsenting States are generally immune from suit, they surrendered their immunity from the exercise of the federal eminent domain power when they ratified the Constitution. That power carries with it the ability to condemn property in court. Because the Natural Gas Act delegates the federal eminent domain power to private parties, those parties can initiate condemnation proceedings, including against state-owned property.

Reversed and remanded

Dissenting: GORSUCH, J., filed a dissenting opinion, in which THOMAS, J., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, KAGAN, and GORSUCH, JJ., joined.

Concurring:

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United States Supreme Court

Case Name: Tae D. Johnson, et al., v. Maria Angelica Guzman Chavez, et al.,

Case No.: 19-897

Focus: Immigration – Removal Order

Federal immigration law contains various provisions authorizing the Government to detain aliens during the removal process. This case concerns two of them: 8 U. S. C. §1226 and 8 U. S. C. §1231. We are asked to decide which of those provisions applies to aliens who were removed from the United States but later reentered without authorization, were subject to reinstated orders of removal, and then sought withholding of removal based on fear of persecution in the particular countries designated by their removal orders. If the answer is §1226, which applies “pending a decision on whether the alien is to be removed from the United States,” then the alien may receive a bond hearing before an immigration judge. If the answer is §1231, which applies after the alien is “ordered removed,” then the alien is not entitled to a bond hearing. We conclude that §1231, not §1226, governs the detention of aliens subject to reinstated orders of removal, meaning those aliens are not entitled to a bond hearing while they pursue withholding of removal.

Reversed

Dissenting: BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.

Concurring: THOMAS, J., filed an opinion concurring except for footnote 4 and concurring in the judgment, in which GORSUCH, J., joined.

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United States Supreme Court

Case Name: Minerva Surgical, Inc., v. Hologic, Inc., et al.,

Case No.: 20-440

Focus: Assignor Estoppel

In Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co., 266 U. S. 342, 349 (1924), this Court approved the “well settled” patent-law doctrine of “assignor estoppel.” That doctrine, rooted in an idea of fair dealing, limits an inventor’s ability to assign a patent to another for value and later contend in litigation that the patent is invalid. The question presented here is whether to discard this century-old form of estoppel. Continuing to see value in the doctrine, we decline to do so. But in upholding assignor estoppel, we clarify that it reaches only so far as the equitable principle long understood to lie at its core. The doctrine applies when, but only when, the assignor’s claim of invalidity contradicts explicit or implicit representations he made in assigning the patent.

Vacated and remanded

Dissenting: ALITO, J., filed a dissenting opinion. BARRETT, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined.

Concurring:

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United States Supreme Court

Case Name: Americans for Prosperity Foundation, et al., v. Rob Bonta

Case No.: 19-251; 19-255

Focus: Statutory Interpretation – 1^st Amendment – Right to Free Association

To solicit contributions in California, charitable organizations must disclose to the state Attorney General’s Office the identities of their major donors. The State contends that having this information on hand makes it easier to police misconduct by charities. We must decide whether California’s disclosure requirement violates the First Amendment right to free association.

In the First Amendment context, the Court has recognized a “type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U. S. 460, 473 (internal quotation marks omitted). The Attorney General’s disclosure requirement is plainly overbroad under that standard. The regulation lacks any tailoring to the State’s investigative goals, and the State’s interest in administrative convenience is weak. As a result, every demand that might deter association “creates an unnecessary risk of chilling” in violation of the First Amendment. Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 968. It does not make a difference in these cases if there is no disclosure to the public, see Shelton, 364 U. S., at 486, if some donors do not mind having their identities revealed, or if the relevant donor information is already disclosed to the IRS as a condition of federal tax-exempt status. California’s disclosure requirement imposes a widespread burden on donors’ associational rights, and this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important. Pp. 15–19.

Reversed and remanded

Dissenting: SOTOMAYOR, J., filed a dissenting opinion, in which BREYER and KAGAN, JJ., joined.

Concurring: THOMAS, J., filed an opinion concurring in part and concurring in the judgment. ALITO, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined.

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United States Supreme Court

Case Name: Mark Brnovich, et al., v. Democratic National Committee, et al.,

Case No.: 19-1257; 19-1258

Focus: Abuse of Discretion – Voting Rights Act – Ballot Collection

In these cases, we are called upon for the first time to apply §2 of the Voting Rights Act of 1965 to regulations that govern how ballots are collected and counted. Arizona law generally makes it very easy to vote. All voters may vote by mail or in person for nearly a month before election day, but Arizona imposes two restrictions that are claimed to be unlawful. First, in some counties, voters who choose to cast a ballot in person on election day must vote in their own precincts or else their ballots will not be counted. Second, mail-in ballots cannot be collected by anyone other than an election official, a mail carrier, or a voter’s family member, household member, or caregiver. After a trial, a District Court upheld these rules, as did a panel of the United States Court of Appeals for the Ninth Circuit. But an en banc court, by a divided vote, found them to be unlawful. It relied on the rules’ small disparate impacts on members of minority groups, as well as past discrimination dating back to the State’s territorial days. And it overturned the District Court’s finding that the Arizona Legislature did not adopt the ballot-collection restriction for a discriminatory purpose. We now hold that the en banc court misunderstood and misapplied §2 and that it exceeded its authority in rejecting the District Court’s factual finding on the issue of legislative intent.

Reversed and remanded

Dissenting: KAGAN, J., filed a dissenting opinion, in which BREYER and SOTOMAYOR, JJ., joined.

Concurring: GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined.

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United States Supreme Court

Case Name: Jefferson S. Dunn v. Matthew Reeves

Case No.: 20-1084

Focus: Habeas Relief – Sufficiency of Evidence

Willie Johnson towed Matthew Reeves’ broken-down car back to the city after finding Reeves stranded on an Alabama dirt road. In payment for this act of kindness, Reeves murdered Johnson, stole his money, and mocked his dying spasms. Years after being convicted of murder and sentenced to death, Reeves sought state postconviction relief, arguing that his trial counsel should have hired an expert to develop sentencing-phase mitigation evidence of intellectual disability. But despite having the burden to rebut the strong presumption that his attorneys made a legitimate strategic choice, Reeves did not call any of them to testify. The Alabama Court of Criminal Appeals denied relief, stressing that lack of evidence about counsel’s decisions impeded Reeves’ efforts to prove that they acted unreasonably. Reeves v. State, 226 So. 3d 711, 750–751 (2016).

On federal habeas review, the Eleventh Circuit held that this analysis was not only wrong, but indefensible. In an unpublished, per curiam opinion that drew heavily on a dissent from denial of certiorari, the Eleventh Circuit reinterpreted the Alabama court’s lengthy opinion as imposing a simple per se prohibition on relief in all cases where a prisoner fails to question his counsel. Reeves v. Commissioner, Ala. Dept. of Corrections, 836 Fed. Appx. 733, 744–747 (2020). It was the Eleventh Circuit, however, that went astray in its “readiness to attribute error.” Woodford v. Visciotti, 537 U. S. 19, 24 (2002) (per curiam). Federal habeas courts must defer to reasonable state-court decisions, 28 U. S. C. §2254(d), and the Alabama court’s treatment of the spotty record in this case was consistent with this Court’s recognition that “the absence of evidence cannot overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Burt v. Titlow, 571 U. S. 12, 23 (2013) (internal quotation marks and brackets omitted).

Petition granted. Reversed and remanded

Dissenting: JUSTICE BREYER dissents. JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins, dissenting.

Concurring:

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